People v. Moreno, Supreme Court Case No. 21SA181

• Docket Nº: Supreme Court Case No. 21SA181
• Citation: 506 P.3d 849
• Case Date: March 28, 2022
• Court: Supreme Court of Colorado

506 P.3d 849

The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Alfred Elias MORENO, Defendant-Appellee.

Supreme Court Case No. 21SA181

Supreme Court of Colorado.

March 28, 2022

Attorneys for Plaintiff-Appellant: Jefferson J. Cheney, District, Attorney, Ninth Judicial District, Donald R. Nottingham, Chief Deputy District Attorney, Glenwood Springs, Colorado

Attorneys for Defendant-Appellee: Megan A. Ring, Public Defender, Casey Mark Klekas, Deputy Public Defender, Denver, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE MARQUEZ, JUSTICE GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE HOOD delivered the Opinion of the Court.

¶1 In this appeal, we review a district court's order invalidating part of Colorado's harassment statute. The district court concluded that the phrase "intended to harass" in section 18-9-111 (1)(e), C.R.S. (2021), unconstitutionally restricts protected speech. We agree that this provision is substantially overbroad on its face and thus affirm the order.

I. Facts and Procedural History

¶2 In December 2018, Alfred Moreno repeatedly emailed his ex-wife, E.M. He asked to see his children, but he also made a series of disparaging and vulgar comments about her, saying that he hated her and that she was a "snake" and a "whore" with an "STD." In response, E.M. told Moreno to stop contacting her. Undeterred, Moreno posted the following on Facebook: "To whom ever is fkng [E.M.] in my friends list. Will you please tell her to have my kids call me asap. You can have her and the STD[.] I just want my kids to contact me. And remember that you are not there [sic] father okay. Thanks homies[.]"

¶3 The prosecution charged Moreno with (1) harassment under section 18-9-111(1)(e), a class three misdemeanor; and (2) habitual domestic violence under section 18-6-801(7), C.R.S. (2021), a class five felony.¹

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¶4 Moreno moved to dismiss the harassment charge, arguing that subsection (1)(e) is unconstitutionally overbroad and vague, both facially and as applied to him, in violation of the freedom-of-speech provisions in the United States and Colorado constitutions.

¶5 As relevant here, section 18-9-111(1)(e) states that

[a] person commits harassment if, with intent to harass, annoy, or alarm another person, he or she ... [d]irectly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene.

(Emphasis added.)

¶6 Although Moreno did not specify which part of subsection (1)(e) was the subject of his challenge, the district court concluded that the phrase "intended to harass" rendered the statute facially unconstitutional as vague and overbroad. Relying mainly on this court's decisions in People v. Hickman, 988 P.2d 628 (Colo. 1999) ; People v. Smith , 862 P.2d 939 (Colo. 1993) ; and Bolles v. People , 189 Colo. 394, 541 P.2d 80 (1975), the district court reasoned that Moreno's statements were protected speech and could not be construed as true threats, a category of unprotected speech that the government may regulate.² It explained that the phrase "intended to harass" could allow a person to be prosecuted for alarming or annoying others by forecasting a storm or predicting political trends — concerns that prompted this court to invalidate a similar statutory provision in Bolles. Moreover, it determined that the statute's prohibition on communications made in a manner "intended to harass" on seemingly any "other interactive electronic medium" sweeps too broadly, covering a substantial amount of protected speech. The court also noted that the statute's circular language "failed to apprise persons of ordinary intelligence what conduct is prohibited," making the "intended to harass" portion of the statute unconstitutionally vague. Because of these deficiencies, the court dismissed the harassment charge.

¶7 The prosecution appealed pursuant to section 16-12-102(1), C.R.S. (2021). Under section 13-4-102(1) (b), C.R.S. (2021), this court has jurisdiction to hear a direct appeal of a district court's determination that a statute is unconstitutional.

II. Analysis

¶8 We begin by setting out the standard of review and then briefly outlining the constitutional framework for free-speech protections. With that background in place, we then focus on the overbreadth doctrine and apply an existing three-part test for overbreadth. After construing the statute, we hold that the phrase "intended to harass" in subsection (1)(e) is substantially overbroad on its face, impermissibly encroaching on protected speech. But by invalidating that phrase, we preserve the remainder of the statute. Before concluding, we also discuss Bolles —a nearly fifty-year-old precedent—and its enduring lessons for the digital age.

A. Standard of Review

¶9 We review a district court's order regarding a statute's constitutionality de novo. E-470 Pub. Highway Auth. v. Revenig, 91 P.3d 1038, 1041 (Colo. 2004). Statutes are presumptively constitutional, and "declaring a statute unconstitutional is one of the gravest duties impressed upon the courts." People v. Graves, 2016 CO 15, ¶ 9, 368 P.3d 317, 322 (quoting City of Greenwood Vill. v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 440 (Colo. 2000) ). A litigant challenging the validity of a statute must prove the statute is unconstitutional beyond a reasonable doubt. Id.

506 P.3d 853

B. Constitutional Framework

1. Free-Speech Protections

¶10 Because section 18-9-111(1)(e) prohibits certain types of communications, it implicates the free-speech protections afforded by the United States and Colorado constitutions. See Smith , 862 P.2d at 941. Moreno invokes both constitutions, which respectively provide that "no law ‘abridging’ or ‘impairing’ freedom of speech shall be enacted." Id. (quoting U.S. Const. amend. I ; Colo. Const. art. II, § 10 ). Still, the right to free speech is not absolute, and the government may create, and courts have upheld, statutes proscribing certain categories of unprotected speech like fighting words, true threats, and obscenity.³ See id. ; see also United States v. Stevens, 559 U.S. 460, 468-69, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

¶11 A statute restricting speech must be carefully crafted and narrowly drawn to carry out legitimate and constitutional legislative goals. See Smith, 862 P.2d at 941 ; Bolles, 541 P.2d at 82. Even if a statute aims to proscribe only unprotected speech, it may be struck down as facially overbroad if it substantially infringes upon constitutionally protected speech. Smith , 862 P.2d at 941 ; see also Broadrick v. Oklahoma , 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

¶12 These bedrock notions hold true irrespective of whether the communication occurs in person or electronically. As the Supreme Court has explained, "whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principle[ ] of freedom of speech ..., like the First Amendment's command, do[es] not vary’ when a new and different medium for communication appears." Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 790, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) ).

¶13 Although courts often examine overbreadth and vagueness together, they are distinct doctrines that spring from different constitutional guarantees. Graves, ¶¶ 11 21-24, 368 P.3d at 325-26. While vagueness protection derives from the Due Process Clause and "concerns the lack of clarity in the language of a statute," overbreadth protection derives from the First Amendment and "concerns the reach of a statute and its encroachment upon constitutionally protected speech." Id. at ¶¶ 23-24, 368 P.3d at 325-26. When a litigant brings a facial challenge on both overbreadth and vagueness grounds, we begin with the overbreadth analysis.⁴ See id. at ¶ 25, 368 P.3d at 326.

2. Overbreadth Doctrine

¶14 The overbreadth doctrine establishes contours for the free-speech provisions of our state and federal constitutions. "[A] statute is facially overbroad if it sweeps so comprehensively as to substantially include within its proscriptions constitutionally protected speech." Bolles, 541 P.2d at 82.

¶15 The prosecution contends that Moreno lacks standing to bring this facial challenge because his conduct is clearly regulated by the statute, and therefore, he should

506 P.3d 854

not be able to attack the statute on the ground that prosecution of another defendant under the statute would be...